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Bush-era official objected on interrogation view

WASHINGTON — A memo released Tuesday on harsh interrogation techniques shows that a former State Department official strongly dissented from the George W. Bush administration’s secret legal view in 2005 that an international treaty against torture did not apply to CIA interrogations in foreign countries.

Until now, the February 2006 analysis by Philip Zelikow has been a high-level, classified, internal critique of the Bush administration’s controversial interrogation policies. At the time he wrote his criticism, Zelikow was Secretary of State Condoleezza Rice’s representative on terrorism issues to the National Security Council’s deputies committee.

The State Department released Zelikow’s memo under the Freedom of Information Act to the National Security Archive, an advocacy group for openness in government.

In late 2005, Bush signed a bill containing a provision sponsored by Sen. John McCain, R-Ariz., that the senator believed applied international standards of cruel and degrading treatment to U.S. interrogation practices.

However, a May 2005 secret Justice Department interpretation of the law exempted CIA interrogation practices like waterboarding carried out in foreign countries.

In his five-page memo, Zelikow wrote that the State Department earlier had agreed with the Justice Department’s view.

But “that situation has now changed” in light of McCain’s amendment, Zelikow wrote.

“Under American law, there is no precedent for excusing treatment that is intrinsically ‘cruel’ even if the state asserts a compelling need to use it,” Zelikow’s memo stated.

“If the techniques, taken together, are intrinsically cruel, inhuman or degrading — i.e., if under American constitutional law they would be either considered cruel and unusual or shock the conscience, then they are prohibited.”

It “appears to us that several of these techniques, singly or in combination, should be considered ‘cruel, inhuman or degrading treatment or punishment,’” Zelikow stated.

“The techniques least likely to be sustained are the techniques described as ‘coercive,’ especially viewed cumulatively, such as the waterboard, walling, dousing, stress positions and cramped confinement,” Zelikow’s analysis concluded.

In an interview Tuesday following the document’s release, Zelikow said, “I believe that the Department of Justice’s opinion was an extreme reading of the law and because the Justice Department opinion was secret, the only way the president could hear an alternative interpretation was for someone like me to offer it.”

“It was bureaucratically and personally awkward for a State Department official to challenge the Department of Justice on the interpretation of American constitutional law, but I had worked on constitutional law years earlier,” said Zelikow.

Zelikow said that “the problem of the codes of conduct we adopted in a twilight war like this have been alleviated in recent years, but the basic issues are not going away.”

The document released by the State Department on Tuesday was marked “draft,” but Zelikow said it was in fact the version circulated within the Bush administration.